Lawyer files to stay sex charges due to delays

The case against a former Nova Scotia businessman facing 36 sex-related charges has been plagued by "abhorrent" delays since theallegations arose in 1995, his lawyer argued Wednesday in an application to stay the proceedings.

Ernest Fenwick MacIntosh, a former telecommunications consultant, is accused of engaging in sex acts with six boys between 1970 and 1977 in a number of communities in eastern mainland Nova Scotia and Cape Breton.

His lawyer, David Bright, told the Supreme Court of Nova Scotia that MacIntosh left Canada for a job in Singapore in 1994, four months before the first allegations were submitted to the RCMP in Cape Breton.

Bright told Chief Justice Joseph Kennedy that the delays in the case started early.

He said the RCMP officer investigating the case, Cpl. Donald Deveau, failed to find a phone number for MacIntosh until a year later, even though he had his address at a hotel in India a month after the allegations were made.

Deveau testified he left a message for MacIntosh the first time he called a message MacIntosh said he never received and was unable to reach him in India until August 1996, despite repeated calls.

The officer said he identified himself in the 1996 call as an RCMP officer from Port Hawkesbury, N.S., and that a warrant had been issued for MacIntosh's arrest following an investigation into an alleged sexual assault.

Deveau said MacIntosh told him he had no intention of returning to Canada, then the line went dead.

MacIntosh testified that he was not told of the warrant and wasbaffled by the reference to an investigation, later concluding that the officer would call back if it was important.

He said he did not try to call the RCMP in Nova Scotia to find out what was going on.

MacIntosh 'in plain view'

In September 1997, MacIntosh was told that his passport would be revoked because he was facing charges in Canada, a decision that was later overturned in court.

Bright said the case against MacIntosh dragged on for years after that with very little happening with the file.

Meanwhile, MacIntosh returned to Canada on a few occasions. But Deveau confirmed he never looked into whether MacIntosh had left India, saying only that federal officials had told him the passport had been "red-flagged."

Asked if he tried to contact the RCMP liaison officer at the Canadian High Commission in New Delhi, Deveau said he never thought of that, either.

MacIntosh testified that he lived about three blocks from the commission and was a member of its Canada Club.

"It's not like Mr. MacIntosh was hiding," Bright said. "He was in plain view."

Court heard that Deveau received repeated calls from the first complainant about the case and was eventually contacted by Nova Scotia's Public Prosecution Service and a concerned member of Parliament from British Columbia, Richard Harris.

"This is not a complicated case," said Bright. "The delays are abhorrent."

More charges were laid in 2001 after more complainants came forward, but the case seemed to go nowhere after that, Bright said.

"Five years go by and nothing is done," he told the court.

In all, MacIntosh spent 13 years in India before he was arrested in April 2007. He was extradited to Canada two months later and remained in custody until April 2008, when he was released on $60,000 bail.

Since that time, he has been living in the Halifax area.

Further delays in case

Bright also complained about delays in getting documents disclosed from the Crown, the loss of Halifax police records and the deaths of several potential witnesses over the years.

Crown prosecutor Diane McGrath pointed out there is no statute of limitations on criminal charges in Canada and she cited case law that suggests the courts have no role in telling the police how to conduct their investigations.

She said it was hard to understand why MacIntosh would choose not to seek clarification from the police once he had learned he was the subject of an investigation.

"He decided to sit back and wait and make us go get him," she said.

As well, she argued that MacIntosh had fought the extradition process, which is typically a drawn-out, complicated process at the best of times.

McGrath also noted that the RCMP did little in the five years before MacIntosh was arrested because their investigations were largely complete and federal lawyers were busy trying to get MacIntosh to return to Canada.

"The delay is of his own making," she said.

The charges against MacIntosh include indecent assault and gross indecency involving allegations of sexual touching and oral sex.

At the time of the alleged crimes, MacIntosh owned a number of businesses in the Strait area of eastern mainland Nova Scotia, including a boarding house that was used by the Strait Pirates junior hockey team.

The six complainants in the case have been separated into two groups and MacIntosh is facing two separate trials, the first of which is expected to take place in April.

The identities of the complainants are banned from publication.

If all of the charges are stayed, the case would simply be thrown out of court. But the judge has the option of staying some of the charges or rejecting the application.